The Service Members Civil Relief Act (SCRA)
The Servicemember’s Civil Relief Act (SCRA) expanded and improved the former Soldiers’ and Sailors’ Civil Relief Act (SSCRA). The SCRA provides a wide range of protections for individuals entering, called to active duty in the military, or deployed servicemembers. It is intended to postpone or suspend certain civil obligations to enable service members to devote full attention to duty and relieve stress on the family members of those deployed servicemembers. A few examples of such obligations you may be protected against are:
- Outstanding credit card debt
- Mortgage payments
- Pending trials
- Terminations of lease.
- Rules in SCRA Litigation:
- Rule No. 1 — The law means only what the judge at the time says it means.
- Rule No. 2 – You can be absolutely correct at the trial level and still have a hard time winning.
- Who is Protected?
- All active duty military members
- Approximately 1,450,000
- All Reserve and National Guard members – about 800,000
- Over 1,250,000 have already been mobilized for the Global War on Terrorism since 9/11
- Purpose of the SCRA
- to provide for, strengthen, and expedite the national defense through protection extended by this Act to service members of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
- to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of service members during their military service.
- SCOTUS on SSCRA
- “Protect those who have been obliged to drop their own affairs to take up the burdens of the nation.” -Boone v. Lightner 319 U.S. 561, 575 (1943)
- “The Act should be read with an eye friendly to those who dropped their affairs to answer their country’s call.” – LeMaistre v. Leffers, 333 U.S. 1, 6 (1948)
PROTECTION OF SERVICE MEMBERS AGAINST DEFAULT JUDGMENTS
50 U.S.C. App § 521
- When the SM has NOT made an appearance, the court’s next step is to decide whether to grant a stay of proceedings.
- General Rule: Except for those default judgments that strictly conform to 50 U.S.C. App § 521, a default judgment against a person protected by the SCRA is voidable, provided that the service member seeking to set the default judgment aside was materially affected by reason of military service in defending against the action and had a meritorious or legal defense to the action or some part of it.
- Application: All civil cases, including any child custody proceedings.
- Requirement of Affidavit of Service:
- In every civil case in which the defendant service member does not make an appearance, the plaintiff must file an affidavit stating:
- Whether or not the defendant is in military service, and showing the necessary facts to support the affidavit; or
- If the plaintiff is unable to determine if the defendant is in the military service, that the plaintiff was unable to determine whether or not the defendant is in the military service
- Mandatory Appointment of Counsel:
- If it appears– from the plaintiff’s affidavit or otherwise—that the defendant is in military service, the court may not enter a judgment until after it appoints an attorney to represent the defendant.
- When the defendant is in military service, the court shall grant a stay of the proceedings for at least ninety days after the counsel appointed for the defendant has applied for a stay, or on the court’s own motion, if the court finds that:
- A defense to the action may exist that cannot be presented without the defendant being present, or
- After due diligence, counsel has been unable to contact the defendant
- Requirement of Affidavit of Service:
- The affidavit must be based on a reasonable investigation of the defendant’s status.
- The court should determine the sources of information the plaintiff consulted when attesting to non-military status of the defendant
- Danger, danger!:
- A significant danger faced by the plaintiff when obtaining a default judgment in a manner that does not comply with the SCRA is the opportunity a service member may subsequently have to petition the court to reopen the proceedings many months or even years later.
STAY OF PROCEEDINGS WHEN THE SM HAS NOTICE
50 U.S.C. App §522
- General Rule: When a plaintiff or defendant has received notice of an action and is either in military service or within a period of ninety days after termination or release from military service, that party may request a stay of proceedings. If the stay is requested in the manner delineated in Section 522, a judge must grant a stay of at least ninety days. The minimum stay is mandatory.
- Application: All civil cases, including any child custody proceedings.
- Authority of the Court: At any state before final judgment, the court may sua sponte, and shall upon application by the service member, stay the proceedings.
- Method for Requesting a Stay of Proceedings:
- The application for a stay shall include:
- A letter or other communication from the service member stating the manner in which the service member’s current military duty requirements materially affect his ability to appear, and stating a date when the service member will be available to appear; and
- A letter or other communication from the service member’s Commanding Officer stating that the service member’s current military duty prevents his appearance and that military leave is not authorized for the service member at the time of the letter.
- Stay Request:
- Application for a stay does NOT constitute an appearance or waive any substantive or procedural defenses, including a defense relating to lack of personal jurisdiction.
- Appointment of Counsel:
- If the court refuses to extend a stay beyond the initial ninety days, the court must appoint counsel to represent the service member.
Opposing a Stay Request
- What is the nature of the “military necessity”?
- Has the SM specified a reason why he cannot participate in the lawsuit?
- Noting that the Act was not to be used to delay the prompt resolution of lawsuits when the SM’s rights would not be materially affected, the Court of Appeals stated that the trial court has wide discretion in deciding whether a stay would be granted under the circumstances of a particular case and which party should beat the burden of proof as to prejudice (Power v. Power, TX Court of Appeals)
- Is the Service Member’s physical presence necessary?
- Issues presented by pleadings
- Can SM utilize VTC to testify?
- Can case proceed on an interim basis with a temporary hearing?
- GA Supreme Court determined in 1989 that orders granting a temporary change in child support, as a general rule, do not significantly affect the SM’s rights because they are interlocutory decrees and subject to modification in the future.
CHILD SUPPORT CASES
- The laws of all states and territories require “expedited process” in child support determinations, which is at odds with the concept of a stay of proceedings while the SM-parent is unable to appear in court due to military duties.
- Child support guidelines usually prescribe a formula for child support based on the incomes of both parents.
- The presence of a SM is not necessary to show the amount of his income
- Current pay base pay tables and BAH/BAS rates can be found online for every rank and region of the country.
- LES can also show if SM receives any special pay
- Custodial parent can testify to her own income and to the cost of any work-related child care if she is primary custodian.
- With all the tools available for an expedited and straightforward determination of child support, a judge should not grant repeated additional stays
- Nothing in the Act states that a stay must apply to all claims and issues in a lawsuit, regardless of contested status.
SEND THE JUDGE TO BOOT CAMP
- Without some basic training for the court, most judges would not have a clue as to what a SM’s daily schedule might be. The court should inquire as to the duty hours (and days) of the SM.
- For most SMs deployed overseas in the Global War On Terrorism (GWOT), it is accurate to describe their duties as “24/7”
- However, a SM assigned to garrison duty at Camp Pendleton, might have duty from 8:00 am to 5:00 pm, with weekends free.
- Members of the armed forces are entitled to 30 days of leave each year (accruing at the rate of 2.5 days per month), although military necessity may limit when the leave is allowed.
- Since the unavailability of the SM depends largely on his assigned duties, duty hours, available leave, and location, the court might want to find out whether the SM can respond to limited discovery, even if unavailable for court appearances.
- Court may wish to inquire as to any and all scheduling reasons why the SM cannot respond to written interrogatories, document requests (if the documents are accessible to the SM) or requests for admissions.
RECOMMENDED GUIDELINES FOR THE JUDGE
- The job of the judge is to demonstrate fairness to both sides, to consider liberally a proper stay request, to move the case along when this can be done in fairness to the SM, and to stay those portions of the litigation that cannot proceed, due to the SM’s military duties.
- In each stay motion presented to the court, the judge should:
- Examine the contemplated action (e.g. trial, deposition of the SM, written interrogatories);
- Determine whether the action or request is reasonable and necessary;
- Decide what actions the SM must take in response;
- Scrutinize how the SM’s military duties might prejudice his response; and
- Determine whether the response is easy, difficult, or impossible to accomplish under the SM’s circumstances.
- The court should examine whether and how the SM is prejudiced by the material effect of the SM.
- The court may request that the SM or his CO file an affidavit setting out the facts and circumstances justifying the delay. Such an affidavit would include:
- State with specificity the SM’s efforts to participate in the case or appear in court as well as the next court date when he will be available;
- Specify what the SM has done to obtain ordinary and/or emergency leave to attend any necessary hearings and/or trial in this court, as well as the results of these efforts:
- Address how much leave the SM requested and when he requested leave;
- Identify the CO who denied the leave request.
- Counsel for the non-military party should request that the court examine whether the SM acted in good faith.
- Most courts hold that a SM must exercise due diligence and good faith in trying to arrange to appear in court.
- When a SM demonstrates bad faith in his dealings with the court, no stay will be granted.
- This rule has been upheld in cases involving paternity, contempt, and discovery non-compliance. (Non-CA cases)
- This may sound confusing, but it’s not.
- The SCRA does a lot of other useful things as well.
- The legal community is woefully ignorant of the SCRA; we can use it to our advantage.
- If you have a question, contact my office. We are always willing and available to help in any way possible.
Mr. Brumer aided me with an early termination of my lease due to Military EAS. Mr. Brumer was able to assist me, and successfully get me released from my lease on very short notice. Mr. Brumer kept me informed every step of they way, while clearly informing me of all of my rights. Mr. Brumer was very knowledgeable and completed everything I asked of him, he also responded to any e-mail or question I had in and timely manner. I would recommend Mr. Brumer for anybody seeking an attorney in my situation.
At our first meeting, Harris Bruner completely explained what would happen. He explained what would be expected of me and what I could expect from him in detail. Me . Brumer was always as close as a phone call or an email. My experience went quickly and smoothly..no surprises. I would not hesitate to refer Mr. Brumer to any of my family and friends for their legal problems. I will never hesitate to seek me. Burners help in the future. Thank you so much for all you did!